[Breaking] Sabarimala: 7-judge Bench to decide on larger issues including Essential Religious Practices Test
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[Breaking] Sabarimala: 7-judge Bench to decide on larger issues including Essential Religious Practices Test

Murali Krishnan

In an interesting development in the Sabarimala case, the Supreme Court today held that larger issues pertaining to the Essential Religious Practices Test, interplay between Articles 25 and 26 on one hand and Article 14 on the other and the conflict between the judgments in the Shirur Mutt case and Durgah Committee case may be decided by a larger Bench.

The Sabarimala review petitions and writ petitions will remain pending until the determination of the questions by the larger Bench. Significantly, there is no mention of stay of the 2018 judgment allowing women into the temple. This would mean that the said judgment will continue to hold the field.

The judgment was pronounced by a Bench of Chief Justice of India Ranjan Gogoi and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. 

The judgment was rendered by a 3:2 majority. Justices Rohinton Nariman and DY Chandrachud have dissented.

The Court in its majority judgment noted that it was their considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque, of Parsi Women married to a non-Parsi in the Agyari and the practice of female genital mutilation in Dawoodi Bohra community  may be overlapping and covered by the judgment under review.

The prospect of the issues arising in those cases being referred to a larger bench cannot be ruled out, the Court observed. It then set out the possible issues that could come up. They are as follows:

(i) Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

(ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.

(iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.

(iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.

(v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.

(vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.

(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

Further, the Court also noted that there is a conflict between the judgments of the Supreme Court in Shirur Mutt case and Durgah Committee case and will require consideration of a larger Bench, the Court held.

Importantly, the Court also stated that while deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered, the Court said.

On September 28, 2018, a Constitution Bench of then Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra had, by a 4:1 majority, struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which was the basis for barring entry of women between the ages of 10 and 50 years into the Sabarimala Temple.

The Court had ruled that Rule 3(b) of 1965 Rules violated the right of Hindu women to practice religion under Article 25. Further, it was held that the bar on entry of women between the age of 10 and 50 years was not an essential part of the religion.

While four judges had struck down the Rule, Justice Indu Malhotra had penned a dissenting judgment holding that religious practices cannot be solely tested on the basis of Article 14 of the Constitution.

She had stated that notions of rationality cannot be brought into religion and that a balance needs to be struck between religious beliefs on one hand, and the cherished principles of non-discrimination and equality laid down by the Constitution on the other.

The judgment of the Supreme Court had significant ramifications in the State of Kerala, with the BJP, right-wing organisations, as well as the Congress Party opposing the verdict. Attempts to prevent women from entering the shrine had led to violence in and around the temple.

Subsequently, 56 review petitions and some fresh writ petitions were filed challenging the verdict. The Court had heard the review petitions and writ petitions in open court before reserving its verdict on February 6 this year.

[Read the Judgment]

Sabarimala-Review-SC-Nov-14-2019.pdf
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